MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 21 2016, 8:38 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.G., September 21, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-JV-414 v. Appeal from the Marion Superior Court, Juvenile Division State of Indiana, The Honorable Marilyn A. Appellee-Plaintiff. Moores, Judge The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1508-JD-1446
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 1 of 6 [1] Following a bench trial, K.G. was adjudicated a delinquent child for
committing what would be Level 3 felony aggravated battery if committed by
an adult. K.G. now appeals, contending that the State presented insufficient
evidence to rebut her claim of self-defense.
[2] We affirm.
Facts & Procedural History
[3] On June 16, 2015, K.M. was in a car with several of her friends heading to meet
up with more friends at a nearby apartment complex. Along the way, K.M.
and her friends saw D.L. walking down the street. There was some simmering
tension between K.M. and D.L. because a mutual friend had told K.M. that
D.L. wanted to fight K.M. K.M. and her friends pulled over and got out, and
K.M. asked D.L. if she wanted to fight her. D.L. said she did not want to fight,
and K.M. and her friends returned to the car and prepared to leave.
Meanwhile, D.L. called her best friend, fifteen-year-old K.G., and told her that
K.M. and some boys had pulled up and were trying to fight her. K.G., who
had been in a fight with K.M. the previous summer, told D.L. she was on her
way.
[4] After speaking with K.G., D.L. called one of K.M.’s friends out of the car.
When he got out of the car, K.M. and the rest of the occupants followed. K.G.,
who lived very close by, then came running down the street. At that time, D.L.
asked K.M. whether she wanted to fight her. D.L. kept “walking into” K.M.,
and D.L. had a “jaw steel quick link,” which is more commonly referred to as a
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 2 of 6 carabiner and can be used as brass knuckles, in her hand. Transcript at 8, 56.
K.G. pulled D.L. aside and took the carabiner from her, stating that D.L. could
seriously hurt K.M. with it and consequently “get in some really big trouble”.
Id. at 82.
[5] D.L. and K.M. again squared off and continued arguing. Eventually, one of
the boys who had arrived with K.M. pushed K.M. into D.L., and the girls
began fighting. Several of the bystanders, including K.G., recorded parts of the
fight with their cell phones.1 At one point, K.G. got in the middle of the fight
and kicked K.M. in the stomach. One of the boys dragged K.G. away while
K.M. and D.L. continued to fight. K.G. then re-entered the fight and tried to
separate the girls, all while still gripping the carabiner in her hand. As K.G.
and D.L. backed away from K.M., D.L. spat at K.M. When K.M. then tried to
walk toward D.L. and K.G., one of the boys grabbed her from behind and
dragged her away. K.M. broke free and again walked toward K.G. and spat at
her. In response, K.G. shouted “b*tch, you (indiscernible) f*cked up” and
threw the carabiner at K.M.’s face, striking her in the left eye. Exhibit Volume,
State’s Ex. 1. K.M. immediately fell to the ground, and as she lay there
bleeding, K.G. repeatedly screamed “that b*tch just spit in my mother f*cking
face” and spat twice in K.M.’s direction. Id. K.G. and D.L. then left together.
1 Four such videos were placed into evidence at the fact-finding hearing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 3 of 6 K.M. was later transported to the hospital by ambulance, and despite
undergoing two surgeries, she has been rendered virtually blind in her left eye.
[6] As a result of these events, the State filed a petition alleging that K.G. was a
delinquent child for committing acts that would be Level 3 felony aggravated
battery and class B misdemeanor battery by bodily waste if committed by an
adult. A fact-finding hearing was held on December 4 and 8, 2015, at which
K.G. argued that she acted in self-defense. On January 7, 2016, the juvenile
court entered a true finding as to the aggravated battery allegation and a not
true finding as to the battery by bodily waste allegation. A dispositional hearing
was held on February 3, 2016, and K.G. was placed on probation. K.G. now
appeals.
Discussion
[7] On appeal, K.G. argues that the State presented insufficient evidence to rebut
her self-defense claim. The standard for reviewing a challenge to the sufficiency
of evidence to rebut a claim of self-defense is the same standard used for any
claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind.
2000). We neither reweigh the evidence nor judge the credibility of witnesses.
Id. If there is sufficient evidence of probative value to support the conclusion of
the trier of fact, the judgment will not be disturbed. Id. “A valid claim of self-
defense is legal justification for an otherwise criminal act.” Id.
[8] To prevail on her self-defense claim, K.G. must show that she: (1) was in a
place where he had a right to be; (2) acted without fault; and (3) was in
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 4 of 6 reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d
274, 277 (Ind. 2003); see also Ind. Code. § 35-41-3-2. A person who provokes,
instigates, or participates willingly in the violence does not act without fault for
the purposes of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct.
App. 2013). Additionally, the degree of force used must be proportionate to the
requirements of the situation, and a claim of self-defense will fail where a
person has used more force than is reasonably necessary to repel an attack.
Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.
[9] When a self-defense claim is raised and finds support in the evidence, the State
bears the burden of negating at least one of the necessary elements. Wilson v.
State, 770 N.E.2d 799, 800 (Ind. 2002). The State may meet its burden by
offering evidence directly rebutting the defense, by affirmatively showing that
the defendant did not act in self-defense, or by relying upon the sufficiency of
the evidence from its case-in-chief. Miller v. State, 720 N.E.2d 696, 700 (Ind.
1999).
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Sep 21 2016, 8:38 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Victoria L. Bailey Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
K.G., September 21, 2016 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-JV-414 v. Appeal from the Marion Superior Court, Juvenile Division State of Indiana, The Honorable Marilyn A. Appellee-Plaintiff. Moores, Judge The Honorable Gary Chavers, Magistrate Trial Court Cause No. 49D09-1508-JD-1446
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 1 of 6 [1] Following a bench trial, K.G. was adjudicated a delinquent child for
committing what would be Level 3 felony aggravated battery if committed by
an adult. K.G. now appeals, contending that the State presented insufficient
evidence to rebut her claim of self-defense.
[2] We affirm.
Facts & Procedural History
[3] On June 16, 2015, K.M. was in a car with several of her friends heading to meet
up with more friends at a nearby apartment complex. Along the way, K.M.
and her friends saw D.L. walking down the street. There was some simmering
tension between K.M. and D.L. because a mutual friend had told K.M. that
D.L. wanted to fight K.M. K.M. and her friends pulled over and got out, and
K.M. asked D.L. if she wanted to fight her. D.L. said she did not want to fight,
and K.M. and her friends returned to the car and prepared to leave.
Meanwhile, D.L. called her best friend, fifteen-year-old K.G., and told her that
K.M. and some boys had pulled up and were trying to fight her. K.G., who
had been in a fight with K.M. the previous summer, told D.L. she was on her
way.
[4] After speaking with K.G., D.L. called one of K.M.’s friends out of the car.
When he got out of the car, K.M. and the rest of the occupants followed. K.G.,
who lived very close by, then came running down the street. At that time, D.L.
asked K.M. whether she wanted to fight her. D.L. kept “walking into” K.M.,
and D.L. had a “jaw steel quick link,” which is more commonly referred to as a
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 2 of 6 carabiner and can be used as brass knuckles, in her hand. Transcript at 8, 56.
K.G. pulled D.L. aside and took the carabiner from her, stating that D.L. could
seriously hurt K.M. with it and consequently “get in some really big trouble”.
Id. at 82.
[5] D.L. and K.M. again squared off and continued arguing. Eventually, one of
the boys who had arrived with K.M. pushed K.M. into D.L., and the girls
began fighting. Several of the bystanders, including K.G., recorded parts of the
fight with their cell phones.1 At one point, K.G. got in the middle of the fight
and kicked K.M. in the stomach. One of the boys dragged K.G. away while
K.M. and D.L. continued to fight. K.G. then re-entered the fight and tried to
separate the girls, all while still gripping the carabiner in her hand. As K.G.
and D.L. backed away from K.M., D.L. spat at K.M. When K.M. then tried to
walk toward D.L. and K.G., one of the boys grabbed her from behind and
dragged her away. K.M. broke free and again walked toward K.G. and spat at
her. In response, K.G. shouted “b*tch, you (indiscernible) f*cked up” and
threw the carabiner at K.M.’s face, striking her in the left eye. Exhibit Volume,
State’s Ex. 1. K.M. immediately fell to the ground, and as she lay there
bleeding, K.G. repeatedly screamed “that b*tch just spit in my mother f*cking
face” and spat twice in K.M.’s direction. Id. K.G. and D.L. then left together.
1 Four such videos were placed into evidence at the fact-finding hearing.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 3 of 6 K.M. was later transported to the hospital by ambulance, and despite
undergoing two surgeries, she has been rendered virtually blind in her left eye.
[6] As a result of these events, the State filed a petition alleging that K.G. was a
delinquent child for committing acts that would be Level 3 felony aggravated
battery and class B misdemeanor battery by bodily waste if committed by an
adult. A fact-finding hearing was held on December 4 and 8, 2015, at which
K.G. argued that she acted in self-defense. On January 7, 2016, the juvenile
court entered a true finding as to the aggravated battery allegation and a not
true finding as to the battery by bodily waste allegation. A dispositional hearing
was held on February 3, 2016, and K.G. was placed on probation. K.G. now
appeals.
Discussion
[7] On appeal, K.G. argues that the State presented insufficient evidence to rebut
her self-defense claim. The standard for reviewing a challenge to the sufficiency
of evidence to rebut a claim of self-defense is the same standard used for any
claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind.
2000). We neither reweigh the evidence nor judge the credibility of witnesses.
Id. If there is sufficient evidence of probative value to support the conclusion of
the trier of fact, the judgment will not be disturbed. Id. “A valid claim of self-
defense is legal justification for an otherwise criminal act.” Id.
[8] To prevail on her self-defense claim, K.G. must show that she: (1) was in a
place where he had a right to be; (2) acted without fault; and (3) was in
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 4 of 6 reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d
274, 277 (Ind. 2003); see also Ind. Code. § 35-41-3-2. A person who provokes,
instigates, or participates willingly in the violence does not act without fault for
the purposes of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct.
App. 2013). Additionally, the degree of force used must be proportionate to the
requirements of the situation, and a claim of self-defense will fail where a
person has used more force than is reasonably necessary to repel an attack.
Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.
[9] When a self-defense claim is raised and finds support in the evidence, the State
bears the burden of negating at least one of the necessary elements. Wilson v.
State, 770 N.E.2d 799, 800 (Ind. 2002). The State may meet its burden by
offering evidence directly rebutting the defense, by affirmatively showing that
the defendant did not act in self-defense, or by relying upon the sufficiency of
the evidence from its case-in-chief. Miller v. State, 720 N.E.2d 696, 700 (Ind.
1999). If a defendant is convicted despite a claim of self-defense, we will
reverse only if no reasonable person could say that self-defense was negated
beyond a reasonable doubt. Wilson, 770 N.E.2d at 801.
[10] K.G.’s arguments on appeal are nothing more than a request to reweigh the
evidence, which we will not do on appeal. When D.L. called K.G. and told her
that K.M. was trying to fight her, K.G. ran to the scene. When D.L. and K.M.
started to fight, K.G. used her cell phone to record the fight until she chose to
enter the fray herself and kicked K.M. in the stomach. When K.M. spat at her,
K.G. retaliated by throwing the carabiner, which K.G. knew could seriously
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 5 of 6 injure someone, at K.M.’s face. As K.M. lay on the ground bleeding, K.G.
continued to scream obscenities and spat twice in K.M.’s direction. This amply
supports a finding that K.G. did not act without fault, and K.G.’s demeanor
both before and after throwing the carabiner supports a finding that she acted
out of rage, not fear. The evidence also supports a finding that K.G. used a
disproportionate degree of force against K.M. Accordingly, the State presented
sufficient evidence to support the juvenile court’s finding that she did not act in
self-defense.
[11] Judgment affirmed.
[12] Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016 Page 6 of 6